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Government Liability

Types of Liability:

• Contractual
• Tortious
• Injuries to military staff

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Contractual Liability
• Govt contractual liability arises from:
- Art 69(1) FC – Federation has power to acquire, hold and
dispose of property or any land and to make contracts.
- s 4(c) GPA states that contractual claims are enforceable
against the govt out of any contract ‘made by the authority
of the govt’.
• S 6 Govt Contracts Act 1949 – no contracts shall be deemed
to be made by authority of the govt (Fed or State) unless
made according to the manner laid down in the Act.
• S 2 GPA – Contract must be in writing in the name of the
govt and signed by the minister or authorised officer.

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Limits to Contractual Liability
•s 8 Govt Contracts Act 1949 – states that no
public officer shall be personally liable upon
contracts made on behalf of govt.
• s 29(1) proviso (a) GPA – an injunction or
specific performance cannot be granted against
govt but court can grant a declaration to declare
rights of the parties.

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Government Liability –
Tortious Liability
• Govt liable for wrongful act, neglect or default of its officers
– s 5 Govt Proceedings Act 1956 (GPA)

• The govt is liable to pay damages to the extent a private


person is liable for tortious acts of govt officers – trespass,
nuisance, negligence etc.

Mohammed Raihan B Ibrahim v GOM [1981] 2 MLJ 27


GOM v Jumat Bin Mohamed [1977] 2 MLJ 103
Datuk Bandar Dewan Bandaraya v Ong Kok Peng [1993] 2 MLJ
234
Low Kwan Moi v Ramli bin Jamil & GOM [1984] 1 MLJ 46

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Identity of Govt Officer
• Must show wrongful act/neglect of the officer – need to identify
officer

• Govt officer – must be employed by the govt and paid out of govt
revenues – s. 6(4) GPA

Hj Abdullah Rahman v GOM [1966] 2 MLJ 174;


Kerajaan Malaysia v Lay Kay Tee [2009] – officer must be made party

• However, govt officer need not be identified where it is of no


significance - Lai Seng & Co v Govt of Malaysia [ 1973] 2 MLJ 36 –
non joinder of any party is not fatal to application or claim.

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Limitations to Tortious liability
• Section 5 GPA liability limited:
- Section 6 (1) GPA – no action lies against govt unless officer is
personally liable or if did not act in good faith or under govt
instruction.
- Section 6(2) GPA – if any written law negatives or limits liability of
officer for any act, neglect or default– then govt liability also limited to
that extent
- Section 6(4) GPA – Govt only liable if officer is personally liable.
- Section 39 GPA – Govt can take advantage of any written law in civil
proceedings against it as a defense

Zahrah bte Hussin v GOM [1978] 2 MLJ 65


Telok Sebang Bhd v GOM [1978] 2 MLJ 76

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Limited Tortious Liability of Govt
• Govt protected from any proceedings for any acts done
or omitted by a person exercising a judicial function – s
6(3) GPA
• Govt cannot be sued for any act done or omitted to be
done in exercising public duties of govt– s 7 (1) GPA;
s 7(2) states exercise of public duties – construction
and maintenance of railways, roads, hospitals, schools
and other public buildings.
• But can sue for damages and negligence /trespass in
execution of public duties - construction/maintenance
of any works by govt.

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Tortious Liability - Military
• Govt could be liable in tort for any wrongful act or neglect
committed by military officer against another military officer
which causes injury, while on military vehicle– s 14 GPA
• However govt will not be liable if:
(a) The deceased or injured person was on duty or in vehicle for
military purpose
(b) The Minister of Finance certifies that the suffering/death will
be compensated/awarded
Choo Fah Fatt v Che Rus B Othman [1977] 1 MLJ 230
Mohamed B Hussain v Hashim Said [1978] 1 MLJ 127

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Limitation Period
• Limitation period stipulated under s 38 GPA – 36
months limitation period to bring action against govt.
• Section 2 (a) Public Authorities Protection Act 1948
(PAPA)- fixes a time limit of 36 months for bringing an
action in court against a public servant for any act
committed or done by him in the exercise of any
public duty ot authority or for any neglect or default in
execution of any written law, duty or authority.
Joseph V Govt of Sarawak [1975] 2 MLJ 39
GOM v Lee Hock Ning [1972] 2 MLJ 51

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Govt Privilege
• Public interest immunity or Crown privilege in
UK – to prevent disclosure of evidence in court
to ensure no injury or prejudice occurs to the
state/govt by the disclosure of certain
documents
Conway v Rimmer [1968] 2 AC 910
Burmah Oil Co v Bank of England [ 1980] AC
1090

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Malaysia – Govt privilege
• Sections 123 and 162 Evidence Act – ‘affairs of state’
• Court’s approach – up to judiciary to determine if privilege
applies, balance between public and private interests
BA Rao v Sapuran Kaur [1978] 2 MLJ 146
Wix Corporation South East Asia Sdn Bhd v Minister of Labour
and Manpower [ 1980] 1 MLJ 224 – cabinet papers and matters
relating to national security or diplomatic relations with foreign
countries
Anthony Gomez v Ketua Polis Daerah Kuantan
[1977] 2 MLJ 24

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Evidence Act
•Section123:
No one shall be permitted to produce any
unpublished official records relating to affairs of
State, or to give any evidence derived therefrom,
except with the permission of the officer at the
head of the department concerned, who shall give
or withold permission as he thinks fit, subject,
however, to the control of a Minister in the case of
a department of the Government of Malaysia, and
of the Chief Minister in the case of a department of
a State Government

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Evidence Act
• Section 124 Evidence Act:
“ No public officer shall be compelled to disclose
communications made to him in official confidence when he
considers that the public interest would suffer by the
disclosure:

Provided that the court may require the head of the


department of the officer to certify in writing whether or not
such disclosure would be detrimental to the public interest
and, if the head of the department certifies that such
disclosure would not be prejudicial to the public interest, then
the officer shall disclose the communications.

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Evidence Act
Section 162 (1):
“A witness summoned to produce a document shall, if it
is in his possession or power, bring it to court
notwithstanding any objection which there may be to its
production or to its admissibility. The validity of any such
objection shall be decided on by the court.
Section 162(2):
“The court, if it sees fit, may inspect the document unless
it refers to affairs of State, or take other evidence to
enable it to determine on its admissibility”.

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Section 162(3):
(3) If for such a purpose it is necessary to cause
any document to be translated, the court may, if
it thinks fit, direct the translator to keep the
contents secret unless the document is to be
given in evidence, and if the translator disobeys
the direction, he shall be held to have
committed an offence under section 166 of the
Penal Code

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Court’s approach
• Court’s approach – up to judiciary to determine if
privilege applies, balance between public and
private interests
BA Rao v Sapuran Kaur [1978] 2 MLJ 146
Wix Corporation South East Asia Sdn Bhd v Minister
of Labour and Manpower [ 1980] 1 MLJ 224 –
cabinet papers and matters relating to national
security or diplomatic relations with foreign
countries
Anthony Gomez v Ketua Polis Daerah Kuantan
[1977] 2 MLJ 24
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OSA
• Official Secrets – Article 10(1)(a) FC and
Official Secrets Act 1972 (OSA)
• Public Service
• Official secret
• Minister’s certificate – conclusive evidence
that document is an official secret
Lim Kit Siang v Public Prosecutor [1980] 1 MLJ
293
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